make decisions. find our television schedule one week in advance at c-span.org, and let us know what you think about the programs you're watching. call us at 202-626-3400 or e-mail us at comments@c-span.org. join the c-span conversation; like us on facebook, follow us on twitter. >> and we have more now from our week-long look back at recent supreme court oral arguments. today we'll feature rivalry v. california -- rivalry v. california -- riley v. california. first, some background. >> on april 29, 2014, the supreme court heard oral argument in the case riley v california. this dealt with, this case dealt with the unreasonable search and seizure provision of the fourth amendment. coming out of a shooting investigation in san diego, california, the question was whether evidence from a cell phone gathered without warrant is admissible. and here to unpack all of that

is mike doyle of clap chi in washington -- mcclatchy in washington, a legal correspondent. what are some of the legal arguments we're going to hear? >> this is all about the power of the police to search in the age of the mobile internet. this is about the ability of police, without a warrant, without going to a judge or a neutral arbiter, to take a cell phone and page through millions of pages of tensions -- texts, thousands of pictures, hundreds of videos all without a warrant and to use the evidence it collects in the prosecution of a potential criminal. >> how often does the issue of searches in the fourth amendment come up before the supreme court? >> it's a constant battle for the supreme court. they have to decide whether a search of a passenger in a car, whether a search of a trunk in a car, whether a drug-sniffing dog can go onto the porch of a house. the fourth amendment is a rich mother load of constitutional questions. this is a great case because this is the 23st century. --

21st century. this is the digital era meets the supreme court. >> and there's that line in the fourth amendment, "unreasonable search and seizure." are we going to hear a lot about that? >> that's the core of this. it is presumptively the case that a reasonable search and seizure requires a warrant. there are certain exceptions, and this case deals with what you'll hear as the search incident to an arrest. police, it has been said, can search somebody that they've arrested to find weapons and to avoid the destruction of evidence. but the court's going to have to figure out does that search incident to arrest exception to the normal requirement to get a warrant include rifling through a smartphone? >> okay. here we go, oral argument. riley v california. >> we'll hear argument in case 13132, riley v. california. mr. fisher?

>> mr. chief justice and may it please the court, this case involves applying the core protection of the fourth amendment to a new factual circumstance. it has always been the case that on occasion of arrest did not give police officers authority to search through the private papers in the drawers and bureau and cabinets of somebody's house. and that protection should not evaporate more than 200 years after the founding because we have a technological development of smartphones that have resulted in people carrying that information in their pockets. >> just to test the principle for why the police can search and seize some objects, consider a gun. the arrestee has a gun on his person, and the police take gun. is part of the reason for that seizure to obtain evidence of the crime, or is it just for the safety of the officer and the safety of the community? >> well, what this court said in

robinson, page 235, is the reason supporting the authority for search into arrest are the two chanel factors which are gathering evidence to prevent its destruction and officer safety. now -- [inaudible conversations] >> what about gathering evidence in order to make the crime -- for instance, with the gun can. could they take fingerprints? the gun is in the police station where the arrestee is being booked, and they could be taking fingerprints. b, could they copy the serial number? c, could they see how many shells were left in the chamber? they obviously have to empty it for safety purposes, all for the case of building the case -- for the purpose of building the case, of obtaining evidence? >> yes, of course, that's done every day. once the gun is in the police department's lawful protection, i think edwards says they can do all that. >> so if the proposition and if the principle then is that some objects that are obtained from the arrestee can be examined in order to build the state's case,

is that at least the beginning premise that we can accept in your case, although, obviously, there are problems of this extent and intrusiveness of the search that are in your case but not in the gun hypothetical? >> well, justice kennedy, the court has never described that as one of the things. if you want to think about this case the way you thought about the automobile search in gant, it would be a beginning premise. but i think you're right that even if that were a beginning premise, it would be only that, a beginning. any search incident to arrest still has to satisfy the fourth amendment's general reasonableness -- >> i think you're right, but gant is probably the best statement in support of the principle that i've suggested, and then you might say, well, that's limited to automobiles, and then we're back where we started. >> right. and there's important things to understand if you want to start thinking about gant because both in term of to its history -- of

its history and its modern application, it's dramatically different from what we have here. >> well, mr. fisher, before we do that, have you been accurate in what you said about robinson and about the court's cases? in weeks, which was quoted in robinson, the court said "t the right always recognized under english and american law to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime." is that historically inaccurate? do you want us to repudiate that? >> no, your honor. what weeks said is that -- you quoted it -- "or fruits and instrumentalities of the crime" have always been something that could be seized from a person. week, of course, as this court said in robinson itself was dicta, and there was that historical authority to take fruits and evidence -- i'm sorry, fruits and instrumentality -- >> did it say fruits or

instrumentality? justice alito said evidence, you changed it to instrumentality. is one of you wrong? >> weeks uses the word ed, but the bishop treatise that you cite inside your thornton concurrence talked about tools and instrumentalities. now, i don't think we have to debate that here because even if we're in a world where the police can seize some evidence and keep it and use it for the prosecution simply for that reason, even if they don't fear destruction, there are still very, very profound problems with searching a smartphone without a warrant. because even under the robinson rule, this court has recognized, for example, when it comes to blood draws, something like a strip search that might occur at the scene, there are limits each to the robinson rule -- >> well, smartphones do present difficult problems, but let me ask you this. suppose your client were an old school guy, and he didn't have a cell phone. he had a billfold, and he had photos that were important to to him in the billfold.

he had that at the time of arrest. do you dispute the proposition that the police could examine the photos in his billfold and use those as evidence against him? >> no. that's the rule of robin szob, that -- robinson, that any physical item on an arrestee can be seized and inspected and then used as evidence if it's useful evidence. we draw a line -- >> yeah. what is the difference between looking at hard copy photos in a billfold and looking at photos that are saved in the memory of a cell phone? >> the difference is digital information versus physical items. physical items at the scene can pose a safety threat and have destruction possibilities that aren't present with digital evidence. what is more, once you get into the digital world you have the framers' concern of general warrants and the writs of assistance -- >> how does that apply to these hard copy photos in the billfold? they don't present a threat to anybody.

and i don't see that there's much of a difference between government arguments there's -- argues there's a greater risk of the destruction of digital evidence in a cell phone than there is in the photos, so i don't quite understand how that applies to that situation. >> well, let me take those one thing at a time. i take it the theory of robinson, this is the theory that government self-propounded, is that any until item because it could contain a razor blade or pin or anything needs to be inspected. so you have a categorical rule because of the ad hoc nature of arrest that police don't have to distinguish physical items one from the other. >> well, but in new orleans -- just stick with justice alito's hypothetical. they find a business card or something which shows a car rental service. can they turn the card over and read it? they're not looking for a pin or explosive, they're trying to read what's on the card. can they do that? >> i think they can, if nothing else under plain view once it's in their hand, justice

kennedy -- >> they turn the card over: >> i think that is find under the categorical rule. i think what you have in robinson is a categorical rule that obviates these exact, difficult case-by-case determinations. you could make an argument that if i needed to, if it were a diary or billfold case, you might be able to make an argument, but i think the court wisely decided under robinson that we need a cat gore call rule that's easily administered in the field. when you have digital evidence, we mitt it's in the opposite direction. even the notion of flipping through photos in a smartphone implicates vast amounts of information. not just the photos themselves, but the gps locational data that's linked in with it, all kinds of other information that is intrinsically intertwined in smartphones. >> including information that is specifically designed to be made public. i mean, what about something like facebook or a twitter account? there's no real -- there's no -- any privacy interest in a

facebook account is at least diminished because the point is you want these things to be to published and seen widely. >> well, mr. chief justice -- >> could you have a rule that the police are entitled to search those apps that, in fact, don't have an air of privacy about them? >> i think that would be extraordinarily difficult to administer that rule, and let me tell you why. because most of the information on smartphones is private. much of it is just like the photos in this case just kept on somebody's phone and not shared with anybody. even a facebook account is a limited universe of people who have access to it. >> you're right -- >> more or less limited. i mean, you know, maybe it's 20 people, maybe it's 100 people, but it's certainly not private in the sense that many of the other applications are. >> i think it's fair to say you have a sliding scale, and there's some stuff on a phone that might be posted on the internet, for example. the difficulty with that case if you wanted to address it in a future case would be the intertwined nature of information on a phone. so looking at those photos in a smartphone account would be

linked to the contacts inside the phone, it would be linked to gps information inside the phone. all of this information is intertwined, and i think you'd have a difficult problem if you wanted to create some sort of rule like that. now remember, the government might try the deal with that differently by saying information in the cloud, so to speak s not accessible to officers. we submit that just further would come pound the difficulty of -- compound the difficulty of applying a rule in this circumstance. >> you think in this case we have to decide whether all the information that may be available in a smartphone can be examined by the police when the owner of the phone is arrested, or can we just focus be on the particular evidence that was admitted in your client's trial? >> well, the way you've phrased the question, i think that's the first cut at this. looking at the particular pieces of evidence here which are photos and videos. but we don't think you can write an opinion that would distinguish those from anything else on -- almost anything else on a smartphone.

the state's argument here is those are not, quote, fundamentally different from other things that people would carry -- >> do you think you could obtain the warrant or the police could have obtained a warrant in this case? ..

>> with a warrant, justice kennedy. let me talk why a warrant is so important. it interpose as neutral observer between the citizen and the police officer. perhaps more importantly it does two very big things. it triggers the fourth amendment particularity requirement the magistrate can say this is what you looked at and this what you couldn't. that's not what the detective testified to at trial as to the scope of his search. he said, at ja 11, we looked at a whole lot of stuff on the phone, that is what in his words, caught his eye. >> how would it work with a magistrate? you recognize, just told justice kennedy a warrant could be obtained a warrant for what? what was the police have to show in this particular case?

so they have seized, which is proper, seized the phone. they secured it and now they want to search it. so they apply for a warrant. what would the warrant have to say? >> we give an example of a warrant in the footnote in our reply brief. i believe it is footnote 3, justice ginsberg and many available on the web from states that already require warrants. what they do they say, the police officer testifies, perhaps somewhat like he testified here at the suppression hearing, i suspected this fellow was in a gang and i believe gang members keep certain kind of things on their phone. this is the crime we're investigating, these particular files in the phone are likely to contain evidence. what happens the warrants say with particularity here are the things you can look at, here what you can't. more importantly, justice against berg, the warrant -- >> that's hard to figure out what you can or you can't. easy for a magistrate but

impossible for an arresting officer? >> i think much easier for a magistrate somewhat removed than an officer under the, under the stresses in the field. i afree it is not going to be perfect. look what happens in our world. >> on the same lines as justice scalia, the point you make elsewhere in your previous and argument that the cell phone or smartphone has everything. it has got the person's whole life. well, if you're arresting somebody on the grounds of suspicion he is gang member and you have evidence to support that, what part of the smartphone is not likely to have pertinent evidence? what application is not? i mean here you've got pictures, you've got videos, you've got calls. i guess similar to what other issues have been raised. i don't know what a magistrate is supposed to put in the warrant? >> i would say his banking app. online dating app. >> banking app will say on this day he deposited $10,000 into his account and then it is going

to coincide with a particular drug deal? >> mr. chief justice those arguments can be made on app by app basis but what happens is, this is the benefit of our rule as opposed to the government's. what the government says, let the officer look and have a back end hearing where you suppress all the stuff he wasn't supposed to look at once you apply particularity requirements. under our rule, once the officer has a warrant, leon kicks in. so you don't have all the hearings in direct court. once the officer does a proper search according to the corners of warranted don't have to have a suppression hearing. one important thing goes into warrant which might have been losed over too quickly in the brief -- glossed over. what is looked at and how it can be kept. my understanding in california is that at least for some crimes it is not just that they're downloading the information and looking at it for the crime of arrest but they're keeping this information in databases, ever

growing databases of every cell phone that they ever -- >> what about you have a device that doesn't have broad information that a smartphone has but only very limited, like a fitbit, that tells you how many steps you've taken. the defendant says i have been in my house all afternoon and they want to check to see if he walked four miles? that is not his whole life which is a big part of your objection. is that something they can look at? >> i think probably not. this is the way the categorical rule in robinson it sweepses in hypotheticals we were talking about one direction. category rule in the other direction for digital information would sweep in a fitbit. obviously don't have to win that argument today but i think that is how you approach the question. remember the fitbit, this is true even more so of smartphones tells you information the court was concerned about in kilo. it tells you modern smartphones work inside of people's house. work appliances and they have cameras. they also monitor the inside of

people's bodies. so -- >> what if the phone in this case was an old-fashioned flip phone? so it has a capacity to take pictures but a much more limited memory? would it be a different case? >> well i think you may want to, that will be part of your conversation in the next case perhaps. i think the easiest way to decide the case right now in 2014 is simply say, digital evidence kept on modern cell phones are, are different than physical items. i don't think it is really worth going back in time to the most rudimentary device having that argument. >> what if the person had on his person a compact disk with photos saved on that? >> i think that might be the same kind of cases you have now. remember, the phone in this case had a removable memory card as many still do, which by the way, we were going to talk about destruction of evidence. that is one answer to the destruction of evidence problem.

couldn't possibly have arisen to the with respect to the evidence at issue because it was on removable memory card that would not be erased remotely or password-protected. we've given lots of arguments in the brief that explain why the government's arguments as to wiping simply don't stand up. >> mr. fisher, would you, your question, you didn't finish the answer. you were describing a difference between the downloading by police into databases that they keep forever. what happens with materials that are returned pursuant to a search warrant, are they precluded from doing that? >> no. >> i wasn't sure i understood your -- >> no, i take it the ordinary rule if the police lawfully seize evidence in the physical world, if it's a physical item might at some point have to be returned to the owner of it but if it is something can be made a photocopy of, a photo, remains in police files, lawfully obtained information, they can use indefinitely into the future. you have real problems however

when you apply that typical rule to digital information because now, again, what i understand, the government itself and the federal government in footnote 3 of reply brief in worry, it is keeping in ever growing federal database at least some information seized from smartphones. >> i'm sorry i don't know that you answered question. >> i'm sorry, maybe i didn't understand. >> can they do the same thing once a search warrant -- >> no, not necessarily because the beauty of a search warrant it candle lynn eight retention rules. it can say, here is how long you're allowed to keep the information. here is who is allowed to look at it and who is not. >> frankly i don't ever remember a coming to me with that kind of delineation. >> well i, justice sotomayor that is what is now starting to happen in the digital world because we have new and different concerns than had arisen in the past. >> mr. fisher, would there be

exigencies that would allow police to look at cell phones and if so what would those exigencies be? >> absolutely. there would be time at the scene where exigency would allow it. the safety argument the other side makes about a bomb or confederate ambush, as court recognizes in chadwick would give exigent circumstances. concern about remote wiping and experts filed in the amicus brief in epic and many others we don't think would ever give rise to a situation where there was legitimate concern but very odd world, yes. >> i don't understand your first exigent circumstances. when there is a bomb but you can't, you don't know whether there is a bomb until you look in the phone? whether his associates are on the way to, you know to kill the officer and, and release their confederate, you don't know until you look into the phone. you know how can that possibly be exigent circumstance?

>> i think surrounding parkses and -- facts and circumstances. chadwick said dealing with the locked briefcase, same problem, judge scalia, surrounding fact the and circumstances might be hypothetical, the amicus brief filed by investigative agencies, classic textbook example how exigent circumstances might apply. >> seems almost never be able to say, you know, surrounding circumstances, give me reason to suspect there's a bomb in the phone or, give me reason to suspect that his confederates are on the way. >> i think you're right that that's going to be extraordinarily rare circumstance. all i'm saying if you have that, extraordinarily rare circumstance you would not need to get a warrant. >> there is not much authority that i could find, if the lawyers is arrested and want to read his whole briefcase or you want to read a year's diary. you cite, i think page 7 of your

brief, the learned hand, 1916 case. is that about the best discussion you can find? i didn't find anything much different. >> justice kennedy we looked high and low as well. >> right. >> and did not find cases involving briefcases full of documents. there is one or only two stray mentions diary and judge friendly mention ad diary. >> it is important to formulate some standard which limits the extent of the search and that is one of the problems in this case say, if we rule for the government in its case, maybe it is not quite fair to ask you, if we rule for the government in its case, worry, federal case, it is not exigent circumstance is there some standard where we could draw the line which would still result in a judgment in your favor? maybe that is not quite a fair question. you're not answering, you're not arguing the government's case.

>> i don't want to tread on both lawyers in that case, but sternly if my case we have exploratory search where not even the state contended amount of information looked at is equivalent to what somebody could have carried around in the old days. may i say something? >> i'm going to say something first. [laughing] if the phone rings can the police answer it? >> there are cases on that, mr. chief justice. obviously this court hasn't dress addressed them. all the cases we found with the cases where police had warrant in hand and held, why yes, the police officers can answer the phone in that circumstance. unquestionably the police officers can look -- >> a warrant for what? a warrant for examining the phone? >> for somebody's arrest. >> how does that extend to your ability to answer his phone. >> no, i'm sorry mr. justice scalia, to effectuate a arrest and immediate search of the area. certainly you could look at caller i.d. coming through but

that would be in plain view but if i could return to justice kennedy's question about the diary, because there is a couple of important aspects to that i hope to be able to draw out. the reason i think you don't find diary cases when you look for them is because people hardly carry a diary outside of the home with them. it was kept in the private drawer in the bedroom or wherever it might be kept. highly, highly unusual circumstance where somebody did you might have a hard case. this is the opposite world. the modern reality of smartphones is that indispensable item for every day life of a modern professional and indeed most anyone. you can't leave the house without it, and be consider yourself to be responsible and safe. and so, you take, to take the world where the police might try to say, we can get the stray diary because of importance of a categorical rule under robinson and try to apply that into a world where everybody has everything with them at all times -- >> including criminals are more

dangerous, more sophisticated, more elusive with cell phones. that is the other side of this. >> well, justice kennedy the fourth amendment has a balance built in already in that respect. we're not saying they can't look at digital information. we're saying when they see it, freeze the contents and get a warrant what they're allowed to search and keep i had under the rules of that warrant. >> all significant in this case that the information was not protected by a password? >> not, i don't think -- >> that doesn't affect the expectation of privacy? >> if the other side were making an argument that this wasn't even a search, then i think that might be an argument they would deply and i think, i don't want to speak for the government but i think they also agree password protection doesn't matter and it certainly doesn't matter as to their argument what information they get. their information is, if we seize a corporate executive's smartphone at the scene and locked and protected underpass word, if we can get that information out back at our lab we get it all and we don't have

to ask for a warrant and we can keep it as long -- >> they argue it doesn't matter but i'm wondering if your position is weakened by the fact that the individual did not seek the greater protection of a password? >> no, i don't think so. people don't like their homes. they don't like their briefcases. simply having it inside of a smartphone protecterred on the person is enough to trigger the fourth amendment to sustain the arguments i advanced. if i could reserve the rest of my time. >> thank you, counsel. mr. dumont? >> thank you, mr. chief justice may it please the court. as mr. fisher has said if mr. reilly had been carrying physical photographs in his pocket at the time of his arrest, there is no dispute that arresting officers could have looked at those photographs to see whether they contained evidence of crime. now what would have been reasonable in that situation does not become constitutionally unreasonable simply because mr. reilly instead carried his photographs in digital form on a

smartphone. the shift to digital format does not make the photographs any less his paperses. >> in one of our court decisions in the past, a series of justices asked or noted that many of our rules were based on practical considerations. practically speaking a person can only carry so much on their person. that is different because carrying a billfold of photographs is a billfold of photographs. it is anywhere from one to five generally, not much more. but now we're talking about potentially thousands because with digital cameras people take endless photos. and it spans their entire life. you don't see a difference between the two things, what, has now become impractical, a

gps can follow people in a way that prior following by police officers and cars didn't permit? >> certainly see a distinction and we certainly see the possibility that in some cases there could potentially, the constitutional difference. what we don't see is that in this case on the facts of this case or anything like it, and like the ordinary case there is constitutional difference from those phenomenon. the, the theory -- >> by the way -- >> even if i'm carrying all my five photographs or carrying two letters as the case in that case that judge cardoza decided in the '20s, they're likely to be very personal, very private photographs. i'm not sure expansion of volume increases invasion of privacy. >> mr. dumont, and your argument and government's general principle arguments a person can be arrested for anything. a person can be arrested for driving without a seatbelt and the police could take that phone

and could look at every single email that person has written, including work emails, including emails to family members, very intimate communication, could look at all that person's bank records, could look at all that person's medical data, could look at that person's calendar, could look at that person's gps and find out every place that person had been recently because that person was arrested for driving without a seatbelt. now that strikes me as a very different kind of world than the kind of world that you are describing where somebody has pictures of their family in a billfold. doesn't it strike you that way? >> i think the answer to that one can always think of marginal cases where there might be concern. it is not the core case. >> i don't know why that is marginal case. >> it is not -- >> your argument and solicitor general's principle argument applies to any arrest and it applies to everything on a cell phone. people carry their entire lives

on cell phones. that is not a marginal case. that is the world we live? , isn't it. >> we hear that repeatedly. the facts of this case is not somebody's entire life on a cell phone. this cell phone had a handful of contacts. in the record, what we understand there were 250 some odd contacts, there were 59 photos and perhaps 42 videos and 30 to 45 seconds and at each. >> to make a rule not for this particular case but for this category of cases and i think what justice kagan is pointed out is very concern, take an offense like failing to buckle up, even driving under the influence. not gang crimes which is what we have in this case. if your rule then, that the cell phone is fair game no matter what the crime, no matter how

thought to be unimportant the crime is. all misdemeanors. all misdemeanors and that opens the world to the police? >> it is true that the court, typically and properly in this area draws categorical lines and that is what the court said in robinson was doing. it is also true that the court repeatedly said that those lines are drawn based on generality of cases, not drawn on the hypothetical case where the problematic. this is in the heartland, a violent -- >> mr. dumont, i guess what i'm trying to suggest to you, you call it marginal but in fact most people now do carry their lives on cell phones and that will only grow every single year as, you know, young people take over the world. [laughing] i mean that is not a marginal case. their computers, they have as much computing capacity as laptops did five years ago and,

everybody under a certain age, let's say under 40, has everything on them. >> i think you need to look at the generality of cases and generality of cases first of all you're not dealing with minor crimes. you will be dealing with serious crimes and secondly dealing with police trying to do their job. >> are you saying we're resting on the discretion of the officer? >> i'm saying -- >> if that is so that leads to the next question, if that is so, then we'll get a warrant. >> saying that you are trying to draw lines that can be applied bit officer in the field, often when there is not time to get warrant either need to know the information now or because -- >> well let's leave exigent circumstances out of it that is an easy case. you're not arguing for exigent circumstances here? >> what i would say, to go back to justice scalia's point, our argument is that same thing mr. fisher concedes, same interest mr. fisher concedes

justify the search of the person and seizure of the phone which are the exigent circumstances type arguments. the need to protect officer safety and need to preserve evidence. the fact that you don't know with a phone, the officer doesn't know with a phone whether there is safety concern or whether evidentiary concern without taking the phone. >> is there any basis for the generality that there is a safety concern? do you have a case where, certainly not where the phone exploded but phone was used to trigger a device or anything like that. >> we don't have a specific case -- >> a general case? >> i can point you to here's a case in california, i don't think it is cited in the briefs. it is natoli. one where there is a late-night arrest. starts with a speeding ticket, off the highway late at night. it develops that maybe there is more going on. the person looks to be under the influence. taken out of the car. looks like there might be a gun. the officer looks at cell phone. first thing he sees when he turns the phone on, picture of what appears to be driver standing with two assault

rifles, posing with his assault rifles. i would say that changes the situational awareness of officer in that situation and provide valuable information that was necessary at the time and could not have been gotten later at the house with a warrant. >> what does that have to do with my question about a bomb? >> i'm only saying it has to do with safety. no, i can't point you to a case where they stopped, looked at his phone and saw some notes about bomb make. i can't give you a case. >> i would assume you need to operate the phone to set off the bomb, so once the police have the phone the bomb is not going to be set off? >> that is true but it is also true wall the objects in all the court's prior cases. in other words once in robinson police secured the cigarette pack, there was no question whether a razor blade in or just heroin. the evidence was not going to be destroyed. >> i have a question about the extent of your theory. we're talking about smartphones

which are mini computers but your theory would apply to ipads, computers, anything that's, for example, sitting next to a person in a car at their desk, if they're arrested at their desk. anywhere if they're carrying in their hand because you see a lot of people carrying the ipad or something comparable, tablet of some sort. your theory would permit a search of all of those things. >> objects that are on the person or immediately associated, like within a purse. it doesn't necessarily extend to things sitting nearby. the court has drawn a clear line there, like the -- >> what is the ruling? you're saying on the person. suppose it's in the car in a holder or suppose it is in the passenger seat? are you saying that's, you don't want to express an opinion about that? >> well. >> you don't want to talk about what is in somebody's pocket?

>> i would say the cart has drawn different rules about that situation. if it is on the car seat an person removed from the car under gant if there is reason to think there might be information about the crime of arrest they can serve the phone but a different rule under robinson. >> what about carrying my laptop in your backpack? >> if your backpack is on your back when arrested yes, we think that is included. let me to back to the volume question because there are two things about a cell phone might justify some sort of a special rule. there is the volume question and then there's the connectivity and networking question. as to the volume question, first of all we don't really have it here but i could an seed could have it in other cases and what they seem to be really concerned about, the idea if you have enough information of enough different kinds on this device and police spend enough time looking at it, they could build the kind of remarkable portrait that the justices alluded to in gant, sorry, in jones. that, there really would be

qualitativelily different from whatever has been done before. now there are differences from jones. that was government surveillance. this some choice the person made to keep a certain amount of information on a phone and then to have it in his pocket. but we think there is possibility you could get to that qualitativelily different search. but miles away from this kind of case and from the heartland. >> so what is your rule? >> sorry? >> three possibilities, possibility one, smartphone, no, get a warrant, unless exigent circumstances. possibility two, yes, it is just like a piece of paper you find in his pocket. or possibility three, sometimes yes, sometimes no. all right, which of those three is yours? >> our possibility, our position is that the core information like this that is contacts -- >> no one of my three choices. call the first choice, never, except ex-sy get without a warrant, always, you don't need a warrant, or three, somewhere

in between, which of the three choices is yours. >> in between with a question -- >> in between then i get to my follow up question. my follow-up question, please tell me what your in between rule is? >> and in my in between rule with the explanation is, that for information that is of the same sort that police have always been able to seize from the person, that include diaries, letters, all other kinds of evidence, pure evidentiary photographs, today's books, for evidence of that same sort same rule should apply. digital format should not make a difference and i would leave, leave for a different today. >> the last explanation is this i would leave for another case the question of whether the volume -- >> i'm sorry, justice kagan has a question. >> mr. dumont i just don't understand that. you said it could be. everything could be reduced to a piece of paper or your bank records. you could have them on you or your medical records, you could just happen to some on you.

i mean that would be absolutely everything, wouldn't isn't. >> the bank records of course the police can get from the bank records with a s&p, not with, not with a search warrant -- a subpoena. so to the extent -- >> the notion you could get them legally in some other way has never justified an illegal search otherwise. >> no you by think it goes to the question how sensitive is the information we're being told is routinely -- >> your rule is sometimes? so i say sometimes what's that? you say if it is kind of thing that the police could have searched for if it wasn't on the computers, then they can search for it on the computer. now since they can search for everything in your pockets before, when it isn't the computer, then why isn't yours everything? by the way, they don't know whether is all is or is not going to turn out to be evidence when it is in your trash box, wherever you put it, i don't know, they don't know that until

they read it. so i guess what you're saying is, i thought it was category two sometimes, but really it's category three, always. now why am i wrong? >> i think inverted two and three. [laughter]. >> that gives you time to think. >> if the police are looking for, have a legitimate investigative purpose for looking at the information on the phone, see whether there is evidence of a crime of arrest or of another crime, it seems to us that they should at a minimum be able to look at same kind of information they could have looked at in any other previous context, the address book, the contacts the phone, notes. >> that is different concession on your part, isn't it? because smartphones carry a lot of information would not be the sort of thing police could look at before. gps tracking information. the police could have never gotten that before. so you're saying that is

protected? >> not saying it is protected. i am saying it raises a different set of issues. >> seems to me that in order to try to give some answer to justice kagan's concerns that maybe the distinction ought to be between serious and non-serious offenses. i don't think that exists in our juniors prudence, correct me if i'm wrong? >> i think that is correct. the court previously declined to draw that line. now another -- >> by the way xp s information, i don't want to admit, my wife might put a note in my pocket. steven, remember turn right at third stoplight. of course you could have looked at information that showed where you had been and where you were going as long as it was on paper. now it is in a gps. so how does your rule help? >> the gps would see if in fact if he did turn right at thing or gone somewhere else.

>> the, again, we can conceive of situations in which the amount of information and the kind of search would lead to a qualitatively different result. we think that -- >> could amend your answer. the answers are for you, not for us, but you could amend your answer, to say not just anything that somebody could have had. the person could have had a diary that records every place the person has ever gone in the last year, theoretically possible. but you can say something that has a realistic analog in the predigital era. we have similar, a problem here that is similar to the problem in the jones gps case. you have a rule of law that was established in the predigital era. now you have to apply it in the digital era or you're asked to apply it in the digital era where the technology changes a lot of things but if there is a close analog in the digital era to something that would have been allowed in the predigital era, that may be a different

story. >> we certainly think that's right and we think that covers the information that was at issue here, the photographs, the short videos. it certainly covers address information, contact information and -- >> you're not willing to limit -- >> text messages. >> you're not willing to limit your position to searches that either are, in order to protect the officer, or in order to preserve evidence, or number three, in order to find evidence of the crime of arrest? you're not willing to limit it that way? you would say, whatever's on the person you can, you can search? >> we think of the available limits that is by farther best historically based and most plausible one and so to say that, and because the old cases -- >> you point out, they get you into the arrest for, you know, not wearing a seatbelt and it seems absurd that you should be able to search that person's

iphone. and you can avoid that if you, if you say, look it, the vast majority of cases this is not going to be a problem unless the officer can reasonably be looking for evidence of a crime of arrest. that would cover the bad cases but it won't cover, you know, the seatbelt arrest. >> we think that could be a perfectly reasonable rule and there is precedent in the court, obviously for that rule. there are two things we would say about that. first ought to be objective standard in line with all the court's fourth amendment jurisprudence. not written down on the booking sheet. was there probable cause to arrest and what crime was there probable cause to arrest for? and also should include a plain view concept. >> does an analog with photos, the arrested person has photos predigital age, of course you can look at them. on the phone, there are photos. absolutely analogous except there are 10,000, indeed his

entire life history in photos. on your rule can the policeman look at the photos by analog or not? because there are 10,000 okay? what's the answer? >> in theory yes, the police can look. in practice -- >> what we is by the way, you understand where i'm going. i think there are very, very few things that you can not find in analog to in predigital age searches and the problem in almost all instances is quantity and how far afield you're likely to be going. >> right. and -- >> do i accept your rule? >> the fundamental doctrinal basis, rational basis of the robinson rule i think fact of arrest, what justice powell said and justice, well, the fact ever the arrest necessarily and legitimately, largely abates the privacy interests of the individual in his personal, anything he or she has chosen to

carry on the person now. modern technology makes it possible for people to choose to carry a great deal of information. but that doesn't change the fact that the reasonable expectation, if a person is subject to custodial arrest, the police will search the person and -- >> mr. dumont, are you saying essentially that nobody has any expectation of privacy or that somebody had to dramatically reduce expectation of private in anything that the person actually wants to keep on them at all times? in other words, one has to keep one's cell phone at home to have expectation of privacy in it? >> no. we're not saying that at all but what we are saying, people do make choices and the choices have consequences. consequence of carrying things on your person, if you're arrested the police will be able to examine that and keep it as evidence of crime. >> thank you, counsel.

mr. david. >> mr. chief justice and may it please the court. i think that it may be helpful to the court before exploring possible alternatives to a categorical robinson rule to at least briefly understand why there is a categorical robinson rule and how cell phones implicate many of those concerns. the categorical robinson rule responded to fact when a person is carrying something on their person and they're subject to legitimate probable cause arrest their expectations privacy are considerably reduced, not limited but considerably reduced and the government on the other hand has several very compelling interests at moment of arrest are vindicated by conducting a thorough search of person and things he has. it avoids destruction of evidence. it protects officer safety and allows the discovery of evidence that's relevant to the crime of arrest to enable prosecution. >> but, mr. dreeben, if, the

understanding was, when there is time, get a warrant. so here you can seize the phone. and you can secure the phone. and you could go to a magistrate and, within an hour, get permission to search. but, what is the reason for cutting out the magistrate here? it is not instrument itself will be any danger because the police have taken it, and they have disabled it. so i don't understand why we cut the warrant out of this picture? >> so several answers to that, justice ginsburg. the first is that you could probably say the same thing about almost everything that is seized under robinson and edwards. once it is in the police's hands they can throw it in the back of a patrol car in the trunk and it would be safe and they could go get a warrant but balance has always been struck at the moment of arrest to allow officers to fulfill compelling interests in the matters that i previously described. the second, and i think very

critical thing about cell phones, they do differ in the amount of information that person can carry on them and the amount of revelation about a person's life, that is true. they also differ that they greatly facilitate criminal activity. they contain a great deal of evidence and most critically they are subject to destruction in a way ordinary physical items are not. even if officer has cell phone in his hand he can not guaranty unless disconnected from the network or somehow protected from the network there won't be a remote wipe signal sent to the phone that wipes its data. >> do you have cases where that is happened? >> i have anecdotal reports from the fbi that has happened. they have looked into the question of to what extent can you protect the phone through the use of things like fair radey, one of the important things you throw a phone into the fair radey bag, supposedly block network signals, when you

open it up it will be shielded or pick up a shield from the cell tower and will wipe the phone. fbi tried to build a ferry today room and that cell stronger built up a stronger signal to the wipe out the fair radey room. >> out of michigan an vermont is there any scenarios where that has taken place. >> i can't speak, justice buyer. >> you don't have any cases. >> i can't speak -- >> is this a program that might be postponed because we have warring technologies et cetera? is it your say saying now we should allow searches of all cell phones because there might be a technology that hasn't yet in fact used in any of the states that have this rule? that sound a little hypothetical. i'm not quite sure how to handle

it. >> well i think there are, clearly technology available and growing technology to wipe phones remotely but the other critical problem that cops back to justice ginsburg's point about getting a warrant encryption technology is increasingly being deployed in cell phones that. is something that clearly is on the rise. when a phone is turned off or if a lock kicks in and the phone encrypted, it can be almost impossible to get into. >> let me stop, you were making the argument in your brief and i have three related questions. why can't you put the phone on airplane mode? >> can i answer that one first? >> yes. >> it is not always possible to find airplane phone on all the 500, 600 models of phones out there. the officer has a lot of things to do when he arrests suspects. say he arrests five suspects in a car and they each have three cell phones. trying to find and put each one of them into airplane mode and go further step and --

>> you're confusing me. if you haven't searched on the scene, then the wipe is going to happen, if you have enough time, at the precinct to put it on airplane mode, the wipe hasn't happened. >> well not necessarily -- >> i'm a little confused about what this argument is. either you do it at the scene and you protect the phone or you do it at the station and you have enough time to get warrant by putting it on airplane mode. >> what you don't necessarily have enough time to get the warrant if you do it at scene, that is certainly true. >> i doesn't disagree. put it on airplane mode. >> if you bring it back, the assumption we'll have airplane mode and court should craft constitutional rule around airplane mode assumes cell phones will not be used on airplanes next five years and manufacturers will make an easily available button for airplane mode. i don't think the court should found a constitutional ruling on that. >> i don't disagree with you but you're asking us for a constitutional principle based on technology that might or

might not do something in one or more cases but not in the general -- >> i think what i'm trying to address, justice sotomayor, traditional justifications for search and incident to arrest include destruction of evidence. that is very real did. the petitioner is asking for new rule. we're asking for application of robinson rule. if the court is not willing to apply the robinson rule primarily i think the best rule to apply -- >> but that's not, that's not quite accurate. what would you do under the robinson rule with an attorney's briefcase? >> the attorney's briefcase may prevent particularized problems because of attorney/client privilege. >> and doesn't that present the exact problem that every cell phone has? >> no i would -- >> i don't think that quite works for you. >> i was referring to the privilege rule. the lower courts looked at it. this court has not. lower courts that looked at question, if a person is arrested holding a briefcase the police can open the briefcase, whether locked or unlocked and

looked at its contents. they can't go through the contents for purery yen interest. they can look for evidence relevant to criminal activity. they do that in way minimally invasive of private sieve they're not doing it for just doing it. they're looking for evidence. >> some cell phones have tax return. you have a tax return of jaywalker looking for a crime. >> yes. and i would acknowledge, justice kennedy that if the court is looking for a rule that limits the ability of police to search cell phones because cell phones are different from paper items in some respects but not all, that the most reasonable rule to apply would be one that says, when there is reason to believe that there's evidence of the crime of arrest on the phone, the officers can look for that. when there is not, they can't. that will -- >> can i ask you a question about that, mr. dreeben. because given variety of things

these cell phones have in them, seems as though if that's, sound good as limiting principle but end up, you can imagine in every case police could really look at everything. i will give you an example. sort of like this case. somebody is arrested for a gun crime and now we're going to look at all the various things that might be related to a gun crime. so whether he has bought guns. whether, whether he has done searches for gun stores. his emails might say something about gun possession or gun purchase. he might have photographs of him with a gun. you know, the whole range of things could relate to that crime, couldn't it? >> justice kagan, i would acknowledge that your reasoning is correct in certain circumstances and for certain crimes. it would not be the case for a jaywalking crime or a bar fight or many other of the minor crimes, seatbelt violations, that are posited on the other

side of the equation for respondent's or petitioner's narrow approach to cell phone searches but i do think that a couple of things are worthying about. first in a serious offense like a firearms offense, in this case a drug offense, if police didn't, went and got a warrant they would be looking at all the same things because the only way to execute the warrant on the phone would be to engage in at least cursory search of everything on the phone to see whether it relate mood they would be looking at same things but the whole idea of a warrant a neutral magistrate tells you can look at those things and has opportunity to limit it in whatever way the neutral magistrate feels is appropriate. that is protection. >> i'm not sure i would go so far to say the neutral magistrate can narrow the want any way they think is appropriate. this court's decision in grubs and dalia, say it is not appropriate for the magistrate to proscribe the manner of search. this is why i wanted to start with the basic bedrock of

robinson, there is different balance, there is different balance at moment of arrest. at that moment society's interests are at their apogee in locating evidence relating to the crime of arrest and apprehending related suspects and the suspect has a highly reduced privacy interest. >> thank you, counsel. four minutes, mr. fisher. >> thank you. i think i heard about four or five different proposed rules that want to just go through each of them one at a time. first, the state talked about a quote, fundamentally different rule and i think justices have already figured out what we say at page 17, 18, of our reply brief that would sweep in virtually everything on the phone. to the extent it wouldn't you would have a really difficult struggle on a case-by-case basis so answer whether any particular app had fundamentally different information that existed in the non-digital world. i already heard it suggested if a lap stop or -- laptop or

smartphone is on somebody's person that is different than if it was sitting next to them. that is not correct where it says in shamel and passwords and wiping satisfy shamel. that gives authorities to search and seize anything without a warrant in the grab area if there is destruction argument. so the person who is arrested sitting at his desk in the office in reaching area from his computer would be open to a full search under the government's rule. there was also some discussion about the exigencies at the scene of an arrest. needing to prevent a wipe, preventing a password from kicking in. the first thing to make sure you understand is, those arguments can apply only at the scene. they don't apply in this case where an officer takes the phone back to the police station and two hours later searches through it at his leisure. so all of the arguments about at the scene and what the fever needs to be able to do at the scene can left for another case.

i think justice breyer is exactly right, at the very best what the government has shown there may be certain, tightly limited circumstances where exigent circumstances would apply. i want to say a quick thing on the password question if particular we didn't talk about but may come up in the next argument, pages 12 to 14 of our reply brief we outline highly ununusual as factual matter while a smartphone is seized while still unlocked and the officer not be able to address concern at the scene that it might lock later. it is worth noting in a footnote we attached the government is arguing in lower courts, even if it does lock the fifth amendment does not give the person the opportunity to refuse to divulge password in response to a warrant. the password argument doesn't have any play if the government wins the argument it is making in lower courts. justice kennedy you discussed possibility distinguishing between serious and none serious questions. with all due respect, the court's decision in robinson and

atwater where the situation was presented preclude that determination for all the reason the government argued in those cases. finally, justice scalia you mentioned a couple times the gant principle that applies in this case evidence you think might be found on the phone. there are two profound problems, as the court recognized in kyllo, you need to recognize the type of privacy people had at the founding. as i said in nye opening the fact that someone might incidentally have item on its person, even rare case, diary or address book are leagues away from the kind of information that people have now that are stored in the home and were sacrosanct at an arrest. the thread of history an arrest on that occasion is not occasion to do that kind of search. justice kagan, if you run the gant test through the world of crimes the government might be able to identify a crime here or there that would be difficult to making a